Trustees of Bacon Academy v. DeWolf, 26 Conn. 602

Trustees of Bacon Academy v. DeWolf

26 Conn. 602 | Conn. | 1858

Hinman, J..

This is a scire facias against the defendant *605as garnishee, and as he was summoned to disclose, and did appear and disclose, in the suit against the original debtor, and was found by the court not indebted to him, and that he had not his goods, &c., in his hands, he now pleads this finding as a bar to any further proceedings against him. On demurrer to this plea the question is, whether the statute (Rev. Stat., tit. 1, sec. 238,) makes such a finding conclusive against the plaintiff in the original suit, and bars him from any further examination of the question on a scire facias. We.think it has not the effect of a conclusive judgment, in respect to any thing but the costs recoverable upon that preliminary examination. It is agreed that if the finding had been the other way, the statute in express terms makes it only prima facie evidence of the facts found; and a scire facias is provided for, to enable the plaintiff to get at the property attached by the process, and thus found to be in the hands of the garnishee. Now, the injustice of making the result of a preliminary examination binding upon one party and not binding upon the other is so apparent, and so different from what we should expect to find in a public statute, that we should look for plain and unequivocal language to express the meaning, before we should believe that such was the intention of the legislature. We think, therefore, that such an intention ought not to be inferred from the provision which authorizes a judgment for the costs of the garnishee, in case the finding is in his favor. Whether there shall be any investigation before the scire facias is brought, is left entirely at the option of the parties. The plaintiff is under no obligation to summon in the garnishee in the original action. He may merely give him notice that he makes a claim against him as garnishee, by leaving a copy with him, without any citation to appear and disclose. And the garnishee when cited to appear may refuse to do so, and it only affects his right to costs on the final judgment on the scire facias. It is true that this circumstance may not be of a very conclusive character. Still, we think, if the legislature had intended to make the result of the investigation binding upon either of the parties, they would not only have made it binding upon *606both of them, but would also have given the citation to appear and disclose the same effect that is given to the citation contained in the scire facias, and would have visited the default to appear with the same results. But this statute has received a practical construction by the profession and by the courts, which we should not attempt to change even if we doubted as to its correctness. It has always been treated as- providing for a preliminary investigation, the result of which, 'while it is not binding upon either of them, is still of great value in providing for them a convenient mode, by which in most cases they are enabled to discover the extent of their legal rights, and thus to save them from the expense of further litigation. But in cases where the parties have not been satisfied with the result, the constant practice has been to retry the question of the indebtedness of the garnishee, or the fact as to his having the debtor’s property in his hands, on the scire facias, and we believe this is the first instance in which it has been attempted to set up the preliminary finding as a bar to the scire facias. This therefore is a case where we are asked to change the practical construction of one of our most familiar statutes, which we think we can hardly be expected to do on any course of theoretical reasoning, or even on the decisions of other states, should they be found not to harmonize with our practice. We advise the superior court to render judgment for the plaintiffs, on the ground of the insufficiency of the plea.

In this opinion the other judges concurred.

Plea insufficient.